Just because someone looks like an art merchant, does not mean they are one. (Image: Henry Iriving)
When buying or selling art in New York, one should be aware of whether he or she is dealing with an “art merchant.”
This was one of the central issues in a dispute between Tom Wesselmann and International Images, Inc.
Tom Wesselmann was a prominent pop-artist whose career spanned from the 1950s until his death in 2004. According to his biography, he
rejected abstract expressionism in favor of the classical representations of the nude, still life, and landscape. He created collages and assemblages incorporating everyday objects and advertising ephemera in an effort to make images as powerful as the abstract expressionism he admired. He is perhaps best known for his Great American Nude series with their flat forms and intense colors.
Beginning in 1998, Tom Wesselmann sold his limited edition prints through a company called International Images Inc., run by Hugh and Karla MacKay. By 1993, the MacKays were getting divorced and their financial and personal affairs were in disarray (Judge Beverly Cohen did not describe the exact nature of this disarray in the case). The problems caused by the divorce led Mr. Wesselmann to terminate his agreement with the MacKays and demand the return of his artworks. At this time the MacKay’s owed Wesselmann $ 334,187.16.
Wesselmann argued that he was entitled to the return of his works. Under New York Arts and Cultural Affairs Law § 12.01, when an artist delivers a work of fine art of his own creation to an art merchant for the purpose of sale or exhibition a consignor(artist)/consignee (merchant) relationship is established. The consignor/consignee relationship is beneficial to the artist for several reasons. Under section 12.01, (i) the consignee is an agent of the artist (ii) the consignee holds the property in trust for the benefit of the artist, and (iii) proceeds from the sale of the work are trust funds for the benefit of the artist.
But in order to enjoy the benefits of this provision, the gallery (or dealer) must be considered an “Art Merchant.”
An Art Merchant is “a person who is in the business of dealing . . . in works of fine art or multiples or a person who by his occupation holds himself out as having knowledge or skill peculiar to such works…” Arts and Cultural Affairs Law § 11.01(1).
The Mackays argued that they were not “Art Merchants” under New York Law; rather, they were “publishers” because “a merchant must purchase and sell, ergo, one who publishes and sells cannot be an art merchant.” The court disagreed and found no “buy or sell” requirement in Section 11.01 and stated that
[a]ll that is required is that the art merchant either deal, exclusively or nonexclusively, in multiples, or that the art merchant, or his or her agent or intermediary, holds him or herself out as having knowledge or skill peculiar to such works.
International Images was an “Art Merchant” under the statute. International Images was “dealing in multiples” by selling Mr. Wesselmann’s prints, and the Mackays held themselves out to have special knowledge by claiming to be publishers who arranged and supervised the printing of limited editions.
Because the Mackay’s and International Images were art merchants, the relationship between them and Mr. Wesselmann was a consignor/consignee relationship. This meant that International Images held Mr. Wesselmann’s prints in trust for him, and Mr. Wesselmann was entitled to their return.
Wesselmann v. International Images Inc., 172 Misc.2d 247, 657 N.Y.S.2d 284 (Sup. Ct. 1996).
Who is considered an Art Merchant under New York Arts and Cultural Affairs Law?
Just because someone looks like an art merchant, does not mean they are one. (Image: Henry Iriving)
When buying or selling art in New York, one should be aware of whether he or she is dealing with an “art merchant.”
This was one of the central issues in a dispute between Tom Wesselmann and International Images, Inc.
Tom Wesselmann was a prominent pop-artist whose career spanned from the 1950s until his death in 2004. According to his biography, he
Beginning in 1998, Tom Wesselmann sold his limited edition prints through a company called International Images Inc., run by Hugh and Karla MacKay. By 1993, the MacKays were getting divorced and their financial and personal affairs were in disarray (Judge Beverly Cohen did not describe the exact nature of this disarray in the case). The problems caused by the divorce led Mr. Wesselmann to terminate his agreement with the MacKays and demand the return of his artworks. At this time the MacKay’s owed Wesselmann $ 334,187.16.
Wesselmann argued that he was entitled to the return of his works. Under New York Arts and Cultural Affairs Law § 12.01, when an artist delivers a work of fine art of his own creation to an art merchant for the purpose of sale or exhibition a consignor(artist)/consignee (merchant) relationship is established. The consignor/consignee relationship is beneficial to the artist for several reasons. Under section 12.01, (i) the consignee is an agent of the artist (ii) the consignee holds the property in trust for the benefit of the artist, and (iii) proceeds from the sale of the work are trust funds for the benefit of the artist.
But in order to enjoy the benefits of this provision, the gallery (or dealer) must be considered an “Art Merchant.”
An Art Merchant is “a person who is in the business of dealing . . . in works of fine art or multiples or a person who by his occupation holds himself out as having knowledge or skill peculiar to such works…” Arts and Cultural Affairs Law § 11.01(1).
The Mackays argued that they were not “Art Merchants” under New York Law; rather, they were “publishers” because “a merchant must purchase and sell, ergo, one who publishes and sells cannot be an art merchant.” The court disagreed and found no “buy or sell” requirement in Section 11.01 and stated that
International Images was an “Art Merchant” under the statute. International Images was “dealing in multiples” by selling Mr. Wesselmann’s prints, and the Mackays held themselves out to have special knowledge by claiming to be publishers who arranged and supervised the printing of limited editions.
Because the Mackay’s and International Images were art merchants, the relationship between them and Mr. Wesselmann was a consignor/consignee relationship. This meant that International Images held Mr. Wesselmann’s prints in trust for him, and Mr. Wesselmann was entitled to their return.
Wesselmann v. International Images Inc., 172 Misc.2d 247, 657 N.Y.S.2d 284 (Sup. Ct. 1996).